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Kaminsky v. Schriro

United States District Court, D. Connecticut

June 21, 2016

JOSEPH W. KAMINSKY, JR., Plaintiff,
v.
DORA B. SCHRIRO, Commissioner of the Department of Emergency Services and Public Protection, et al., Defendants.

          CORRECTED RULING ON MOTIONS TO DISMISS

          Michael P. Shea, U.S.D.J.

         Plaintiff Joseph W. Kaminsky, Jr. brings this civil rights action against state and local officials alleging violations of the First, Second, and Fourth Amendments of the United States Constitution and Article First, Sections 10 and 15, of the Connecticut Constitution. The case arises from the search of, and seizure of firearms from, Kaminsky's property and from Kaminsky's attempts to recover those firearms. Kaminsky sues the following defendants in their individual and official capacities: Dora B. Schriro, Commissioner of the Connecticut Department of Emergency Services and Public Protection ("DESPP"); DESPP Sergeant Paolo D'Alessandro; Chief of the Town of Coventry Police Department ("CPD") Mark A. Palmer[1]; and CPD Lieutenants Walter Solenski and Brian Flanagan. He sues the following defendants in their individual capacities only: Connecticut State Police ("CSP") Officers Barbara Mattson, Vincent Imbimbo, and Sean Musial, and CPD Officers Michael Hicks, Robert Dexter, and Ted Opdenbrouw.

         The Amended Complaint asserts three counts. In Count One, Kaminsky claims that Defendants D'Alessandro, Mattson, Musial, Imbimbo, Palmer, Solenski, Flanagan, Dexter, Opdenbrouw, and Hicks unlawfully searched and seized his property in violation of the Fourth Amendment. In Count Two, Kaminsky asserts retaliation claims against Defendant Schriro under the Second Amendment and Article First, Section 15 of the Connecticut Constitution. In Count Three, Kaminsky asserts retaliation claims against Defendant Schriro under the First Amendment and Article First, Section 10 of the Connecticut Constitution.

         Defendants D'Alessandro, Imbimbo, Mattson, Musial, and Schriro (the "State Defendants") have filed a motion to dismiss under Fed.R.Civ.P. 12(b)(1) and 12(b)(6). (ECF No. 40.) The State Defendants argue that (1) this Court lacks jurisdiction over all claims against them in their official capacities, (2) this Court should abstain from addressing Kaminsky's suit in light of a parallel state action, (3) Kaminsky fails to state a claim of retaliation under the First and Second Amendments and the Connecticut Constitution, and (4) Kaminsky fails to state a claim in Count One against Defendant D'Alessandro under the theory of supervisory liability.

         For the reasons explained below, the State Defendants' motion to dismiss is granted in part and denied in part. As to Count One, the claims against the State Defendants in their official capacities are dismissed because they are barred by the Eleventh Amendment and, to the extent they seek injunctive relief, the request for injunctive relief is moot or the Plaintiff lacks standing to seek such relief. The portion of Count Two asserting a retaliation claim under the Second Amendment is dismissed because it fails to state a plausible claim for relief. I decline to assert supplemental jurisdiction over the remaining portion of Count Two, asserting a retaliation claim under Article First, Section 15 of the Connecticut Constitution, because it involves a novel and complex question of state law. As to Count Three, Kaminsky's claim under the First Amendment is dismissed because it fails to state a plausible claim for relief. Because the other claim asserted in Count Three - asserting a violation of Article First, Section 10 of the Connecticut Constitution - also involves a novel and complex question of state law, I decline to assert supplemental jurisdiction over that claim as well. Finally, because Kaminsky does not oppose the dismissal of his claim against Defendant D'Alessandro, it is dismissed.

         Defendants Solenski and Flanagan (the "CPD Defendants") have also filed a motion to dismiss, in which they argue that Kaminsky fails to state a claim against the CPD Defendants in their official capacities. (ECF No. 42.) Kaminsky does not oppose that motion. It is therefore granted.

         The only claim that survives is Kaminsky's Fourth Amendment claim, asserted in Count One, against Mattson, Musial, Imbimbo, Solenski, Flanagan, Dexter, Opdenbrouw, and Hicks in their individual capacities.

         I. Factual Allegations

         The Amended Complaint alleges the following facts. Prior to December 16, 2011, Kaminsky was licensed by the Town of Coventry, the State of Connecticut, and the United States government to carry and sell pistols and revolvers, possess ammunition and machine guns, and deal firearms as a federal firearms licensee. (Am. Compl., ECF No. 35-1, at ¶ 2.) In December 2011, Kaminsky attempted to renew his three-year federal firearms license. (Id. at ¶ 3.) In performing a background check, the federal government learned that Kaminsky had been convicted of a felony on March 31, 1964. (Id.) This felony conviction had not appeared during prior background checks conducted by any of the jurisdictions that had previously provided Kaminsky a firearms license. (Id.)

         Conn. Gen. Stat. § 53a-217 prohibits felons from possessing firearms; Kaminsky therefore could not possess one legally. (Id. at ¶ 4.) On December 16, 2011, the Connecticut State Police and Coventry Police Department were informed of Kaminsky's felony. (Id.) In response, CSP Officers Mattson and Imbimbo, along with CPD personnel - Chief Palmer, Lt. Solenski, Sgt. Flanagan, and Officers Dexter, Opdenbrouw, and Hicks - searched Kaminsky's property without a warrant and seized 36 firearms and certain ammunition. (Id. at ¶ 25.) On December 19, 2011, Officers Mattson and Musial returned to Kaminsky's property and seized an additional 23 firearms. (Id. at ¶ 38.)

         Seeking to regain his firearms licenses, Kaminsky applied to the Board of Pardons and Paroles (the "Board") to be pardoned for his 1964 felony conviction. (Id. at ¶ 64.) He explained to the Board that he had forgotten about his felony conviction when applying for his federal firearms license. (Id. at ¶ 65.) The Board granted Kaminsky a full pardon on March 4, 2013, effectively removing the felony from his criminal record. (Id. at ¶ 67.)

         Kaminsky currently holds the following firearm permits: a permit to carry pistols and revolvers issued by CSP on September 10, 2013 (id. at ¶ 68), a permit to sell pistols and revolvers at retail issued to him by the Chief of Police for the Town of Coventry (id. at ¶ 69), and a federal firearms license issued to him by the Bureau of Alcohol, Tobacco, Firearms, and Explosives on February 1, 2014 (id. at ¶ 70).

         After receiving the pardon, Kaminsky sought the return of the firearms and munitions seized from his property on December 16 and 19, 2011. (Id. at ¶ 79.) On August 12, 2013, he filed a "Petition for Declaratory Ruling" in Connecticut Superior Court, seeking, in effect, the return of 30 seized firearms. (Id. at ¶ 10 (the "State Action").) The Petition asked the court to determine Kaminsky's right to the return of his seized property - namely, six firearms currently held by CSP and twenty-four firearms "of unknown location" - and to determine whether it was lawful for the state to hold his property "in the absence of a criminal arrest, civil forfeiture proceeding, or finding that the property was a nuisance or contraband." (Id.)

         On November 7, 2014, while the State Action was still pending, Defendant Schriro threatened to contest Kaminski's pardon, claiming that the Board failed to provide notice of its decision to CSP, depriving it of an opportunity to be heard. (Id. at ¶ 11.)

         II. Legal Standard

         "[A] claim is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it. A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists. . . . In resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) a district court may consider evidence outside the pleadings." Morrison v. Nat'l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (citations and internal quotation marks omitted).

         A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the allegations in the complaint. In considering such a motion, I must take Kaminsky's "factual allegations to be true and [draw] all reasonable inferences in" his favor. Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and internal quotation marks omitted). The plausibility standard "does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence" supporting the claim for relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). "Although a court must accept as true all of the allegations contained in a complaint, this tenet is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Sikhs for Justice, Inc. v. Gandhi, 614 Fed.App'x 29, 30 (2d Cir. 2015) (citation and internal quotation marks omitted).

         III. Discussion

         A. Rule 12(b)(1): Jurisdictional Challenges

         i. Official Capacity Claims Against State Defendants

         Federal courts lack jurisdiction over suits by citizens against a state. See, e.g., In re Charter Oak Assocs., 361 F.3d 760, 765 (2d Cir. 2004) ("The Eleventh Amendment effectively places suits by private parties against states outside the ambit of Article III of the Constitution."). This principle extends to a suit brought by a citizen against a state official in her official capacity, which is "another way of pleading an action against the entity of which [the] officer is an agent[; a]s long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity." Kentucky v. Graham, 473 U.S. 159, 165-166 (1985).

         "An important exception to this general rule is set forth in Ex Parte Young, 209 U.S. 123 (1908), which holds that the Eleventh Amendment does not bar suits seeking prospective relief against state officials acting in violation of federal law because such action is not considered an action of the state." Burnette v. Carothers, 192 F.3d 52, 57 n.3 (2d Cir. 1999). "[I]n determining whether the Ex [P]arte Young doctrine applies to avoid an Eleventh Amendment bar to suit, a court need only conduct a straightforward inquiry into whether the complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective." Western Mohegan Tribe & Nation v. Orange Cty., 395 F.3d 18, 21 (2d Cir. 2004) (internal quotation marks omitted).

         The State Defendants argue that "the plaintiff has made no claim for prospective injunctive relief against any of these defendants, " and that "the plaintiff has sued state defendants for money damages in both their official and individual capacities." (State Defs.' Mem., ECF No. 41, at 15.) This argument, as Kaminsky points out, is only partially correct. With respect to the claims in Count One against the state officers in their official capacities, Kaminsky seeks damages resulting from past conduct that occurred on December 16 and 19, 2011. Such claims clearly do not "allege an ongoing violation of federal law and seek relief properly characterized as prospective." Thus, the Court lacks subject matter jurisdiction over those claims.

         Drawing all reasonable inferences in Kaminsky's favor, as I must, I conclude that Kaminsky seeks injunctive relief in Counts Two and Three. I conclude, however, that the request for injunctive relief is moot or that Kaminsky lacks standing to seek such relief. The prayer for relief includes no express request for injunctive relief. Nonetheless, in Count Two, Kaminsky alleges that "Schriro's unlawful retaliatory conduct caused Kaminsky to implement a substantial change in his litigation strategy, " (id. at ¶ 131), and that "Kaminsky was forced to engage counsel in order to file this District Court action . . . in order to request injunctive relief to protect himself against the threatened unlawful retaliatory conduct which would have had negative consequences for hi[s] pardon, " (id. at ¶ 132). Kaminsky makes the same claim in Count Three using identical language. (Id. at ¶ 144-145.) While elliptical, these statements suggest an intent to seek injunctive relief that would prevent Schriro or D'Alessandro[2] from further retaliating against Kaminsky.

         Nonetheless, Kaminsky has failed to demonstrate that there remains a live controversy with respect to the challenge to his pardon allegedly threatened by Schriro or D'Alessandro.[3]"When the issues in dispute between the parties are no longer live, a case becomes moot, and the court-whether trial, appellate, or Supreme-loses jurisdiction" over that issue(s). Lillbask ex rel. Mauclaire v. State of Conn. Dep't of Educ., 397 F.3d 77, 84 (2d Cir. 2005) (citations and internal quotation marks omitted). "Longstanding principles of mootness . . . prevent the maintenance of suit [or claim] when there is no reasonable expectation that the wrong will be repeated. . . . [It must be] absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 66 (1987). Mootness "occurs when the parties have no legally cognizable interest or practical personal stake in the dispute." ABN Amro Verzekeringen BV v. Geologistics Ams., Inc., 485 F.3d 85, 93 (2d Cir. 2007).

         In his memorandum, Kaminsky admits that the Board, in response to Schriro's letter challenging Kaminsky's pardon, declined to reconsider Kaminsky's pardon. (See Mem. Opp., ECF No. 49, at 9 & n.7.) In fact, he attaches to his brief correspondence including (1) Schriro's February 3, 2015 letter to the Board of Pardons and Paroles requesting reconsideration of his pardon, (2) an April 24, 2015 letter from his attorney to the Board of Pardons opposing Schriro's request, and (3) a May 7, 2015 letter from the Board's chairperson stating that he had "found no cause for a review to revoke the pardon of Mr. Kaminsky." (ECF No. 49-3.) In other words, Schriro was unsuccessful in her alleged retaliation against Kaminsky, and Kaminsky has identified no other recourse Schriro or D'Alessandro can take to challenge Kaminsky's pardon. Indeed, while I have construed the complaint to seek some form of injunctive relief, I note that it nowhere identifies any actions Kaminsky is seeking to enjoin, other than "the threatened unlawful retaliatory conduct which would have negative consequences for hi[s] pardon." (Compl. ¶ 132 (emphasis added).) There are no allegations and nothing in the record supporting a "reasonable expectation" that either Schriro or D'Alessandro is likely to engage in any future conduct that "would have negative consequences for his pardon."

         Kaminsky's claim for injunctive relief against Schriro and D'Alessandro regarding petitioning activity before the Board therefore has become moot. Kaminsky's allegations, combined with the evidence he has provided the Court, demonstrate that there is no reasonable prospect that Schriro or D'Alessandro will retaliate against Kaminsky by challenging his pardon because the Board has already considered and rejected that request. Because there are no allegations providing any reason to believe that Schriro or D'Alessandro will again attempt to petition the Board to reconsider its decision, Kaminsky's claim requesting the Court to enjoin Schriro or D'Alessandro from doing so is moot.

         Kaminsky also argues that he is entitled to an injunction barring Schriro and D'Alessandro from engaging in any retaliatory conduct because Kaminsky's license must be renewed every five years, and as a result, he will have to "deal[] with Schriro and D'Alessandro" when he seeks renewal. (Pl.s' Mem. Opp. at 9-10.) He does not identify what he fears Schriro or D'Alessandro will do that will be "retaliatory" when he seeks to renew his license. Kaminsky lacks standing to assert such a claim because his fear of encountering Schriro or D'Alessandro is speculative - in that he cannot identify the future unlawful conduct he seeks to enjoin - and fails to demonstrate any real or immediate danger of constitutional injury. "[An] equitable remedy is unavailable absent a showing of irreparable injury, a requirement that cannot be met where there is no showing of any real or immediate threat that the plaintiff will be wronged again-a ‘likelihood of substantial and immediate irreparable injury.'" City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983) (citation omitted)); see also Clapper v. Amnesty Int'l, USA, 133 S.Ct. 1138, 1147 (2013) ("To establish Article III standing, an injury must be . . . actual or imminent . . . . Although imminence is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes-that the injury is certainly impending." (emphasis in original)); Marshall v. Switzer, 900 F.Supp. 604, 615-16 (N.D.N.Y. 1995) ("While the Court recognizes that it is likely that plaintiff will have to purchase a new van at some time in the future, [which may lead to the unlawful application of certain regulations against him, ] that is an event far too remote in time to compel injunctive relief in ...


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